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Land reform in a changing development context

Chap

ter 3Linkages between evidence, policy and practice

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Contents1 The chapter at a glance 30

2 A short history of land reform 30

2.1 Dispossession and landlessness prior to 1994 30

2.2 The formation of DLA 31

2.3 The evolution of the land reform programme 32

2.3.1 Restitution 32

2.3.2 Redistribution 33

2.3.3 Tenure reform 34

2.4 Key problems facing land reform 34

3 Co-operative governance and local government transition 35

3.1 The principle of co-operative government 35

3.2 The objects and role of local government 36

3.3 The impetus for decentralisation 36

3.4 Public administration and developmental local government 37

3.5 Local government transition 38

3.5.1 The Local Government: Municipal Structures Act 38

3.5.2 The Local Government: Municipal Systems Act 38

3.6 Local government and land reform 38

3.7 The gaps between vision and manifestation 39

4 Changing planning legislation and approaches 40

4.1 The Development Facilitation Act 40

4.1.1 Spatial development frameworks and land-use management schemes 41

5 Legislation regulating township

establishment and the provision of municipal services 42

6 Emerging environmental legislation 43

6.1 The National Environmental Management Act 44

6.1.1 NEMA Principles 44

6.1.2 Environmental implementation and management plans 46

6.2 Other environmental legislation of relevance to land reform 46

7 Conclusions 46

8 Chapter references 47

Endnotes 48

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1 The chapter at a glanceThe first section of this chapter provides a brief history

of the land reform programme by:

• reviewing the extent of dispossession and

landlessness prior to 1994;

• charting the formation of DLA and the evolution

of different dimensions of the land reform

programme, having located its roots in the

Constitution, the White Paper on South African

Land Policy and legislation promulgated to give

effect to the Constitution; and

• summarising the overarching problems and

challenges facing land reform implementation.

The chapter moves on to locate the implementation of

the land reform programme within a rapidly changing

development environment by:

• examining the mechanisms developed to make

co-operative governance work more effectively,

and the implications of ad hoc intergovernmental

relations for land reform implementation;

• highlighting key principles underlying public

administration and spatial planning; and

• reviewing the process of local government

transition, the notion of developmental local

government, the decentralisation of development

functions, the establishment of ‘wall-to-wall’

municipalities, and progress made on integrating

land reform within municipal IDPs.

Then the chapter highlights the rapidly expanding suite

of legislation relevant to the management of natural

resources, human settlement and service delivery on

land once it has been transferred through the land

reform programme.

Finally, it provides an institutional and legislative

backdrop on which different elements of a

comprehensive settlement and implementation support

strategy will be projected in subsequent chapters.

2 A short history of land reform

2.1 Dispossession and landlessness prior to 1994

Reform of the highly unequal racial division of

landholding inherited from colonialism and apartheid

was one of the greatest challenges facing South

Africa in the transition to democracy in 1994. Popular

expectations were high that the new democratic

regime would effect a fundamental transformation of

property rights to address the history of dispossession

and lay the foundations for the social and economic

advancement of the rural and urban poor.

Under colonialism, and later under apartheid, South

Africa was divided into racial zones. Most of the

country, including most of the best agricultural land,

was reserved for the minority white settler population,

with the African majority confined to just 13% of the

territory (the native reserves, later known as African

‘homelands’ or ‘bantustans’). At the end of apartheid,

approximately 82 million hectares of commercial

farmland (86% of all farmland, or 68% of the total

surface area) were in the hands of the white minority,

concentrated in the hands of approximately 60 000

owners. Over 13 million black people, the majority

of them poverty-stricken, remained crowded into

the former homelands, where rights to land were

generally unclear or contested and the system of

land administration was in disarray. These areas were

characterised by extremely low incomes and high

rates of infant mortality, malnutrition and illiteracy

when compared to the rest of the country. On private

farms, millions of workers, former workers and their

families faced severe tenure insecurity and lack of

basic facilities. In the cities and rural towns, informal

settlements continued to expand, beset by poverty,

crime and a lack of basic services.

South Africa continues to have one of the most

unequal distributions of income in the world, and

income and material quality of life are strongly

correlated with race, location and gender. A deepening

social and economic crisis in the rural areas – fuelled

by falling formal sector employment, the ravages

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of HIV/Aids and ongoing evictions from farms – has

accelerated the movement of people from ‘deep rural’

areas to towns and cities throughout the country,

while tens of thousands of retrenched urban workers

make the journey the other way. The result of these

continuing processes is a highly diverse pattern of

demand for land for a variety of purposes, a complex

pattern of rural-urban interdependency, and numerous

hot-spots of acute land hunger in both urban and rural

areas.

Under the apartheid regime, whites were assisted

by the State in every aspect of agriculture, including

provision of land and infrastructure, generous financial

support, regulation of markets and legal coercion

of farm labour. Since the mid-1980s, however, the

agricultural sector has undergone major reform,

through gradual reductions in state support and

ongoing deregulation and trade liberalisation. This has

led to considerable restructuring and consolidation

within the sector, which is now dominated by

approximately 40 000 highly capitalised producers

who compete in both domestic and international

markets. Commercial farmland is held almost entirely

in freehold title, and is actively traded on the market

with minimal restrictions.

There are a number of key trends since 1994 (Ambert

& Hornby 2006):

• The number of commercial farms is diminishing,

with 20% of commercial farms producing 80% of

the total value of production.

• Agriculture is a major employer. Commercial

farmers employ 865 000 people, and a further

420 000 are employed in subsistence or small-

scale agriculture. This accounts for 11% of the

national labour force.

• There has been a 15% rise in agricultural

subsidies to producers in the developed world

between the late 1980s and 2004, and a

simultaneous reduction in South Africa’s general

economic tariffs from 28% to 7.1%.

Demand for land in South Africa has a number of

origins, both economic and political. Much of the

demand for land is a demand for restoration of

historical rights (restitution), and does not necessarily

mean that people intend returning to an agrarian

lifestyle. Indeed, large numbers of restitution claimants

have opted for cash compensation rather than land,

and it appears likely that many who regain their land

will end up leasing it to established white producers,

possibly in the form of joint ventures. Farm workers on

commercial farms are largely poor, and only a minority

has either the resources or the inclination to engage

in agricultural production on their own. Secure housing

and paid employment thus tend to be the priority for

this group. Within the former homelands there are a

variety of small- and medium-sized African farmers,

many of whom would be interested in expanding

production. However, many more people in these

areas look to agriculture only as a supplement to other

sources of livelihood in the urban-industrial economy.

While its population is substantially rural (close to

50%), South Africa has long ceased to be an agrarian

society. Widespread dependence on wage employment

and the most comprehensive social welfare system

in sub-Saharan Africa mean that the majority of the

population, even in the rural areas, do not look to land-

based activities as their primary source of livelihood,

and are unlikely to do so in the future. This helps to

explain the relatively weak pressure for land reform

‘from below’. At the same time, we have the most

developed commercial agricultural sector in Africa,

one which exerts a powerful political influence despite

its racist past and the small number of farmers and

farm owners. This sector has successfully lobbied

government, both before and after the transition to

democracy, for the protection of private property rights

and for agrarian reforms to be minimised.

2.2 The formation of DLA

DLA is a relatively new department, created in 1994,

charged with creating and implementing a land reform

programme to transform economic relations in the

countryside. It incorporated the former Department

of Regional and Land Affairs, itself a successor to the

Department of Native Affairs (Hall 2004). The DLA

inherited an old guard of civil servants, but also saw

the influx of a new cadre drawn in large part from

the ranks of NGOs involved with rural resistance.

The NDA had its own Minister until 1996, when the

two departments were united under one Ministry of

Agriculture and Land Affairs, although they continued

to operate under separate policy frameworks. Under

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the Constitution, land is a national competence,

meaning that responsibility for this area is not shared

with provincial or local government, unless powers are

specifically delegated to them.

A Land Reform Pilot Programme (LRPP) was launched

by DLA in 1995 to test a range of approaches to

land reform and to develop appropriate institutional

systems and procedures. Alongside the pilots, the

policy framework was being created through a lengthy

consultation process involving rural communities,

commercial farmers and farming organisations,

NGOs, planners, academics, financial institutions,

statutory organisations, government departments and

foreign experts. The emerging policy framework was

debated in a series of workshops and conferences,

including discussion of the Draft Land Policy Principles

in September 1995, the Green Paper published in

1996, and the final policy framework, the White Paper

on South African Land Policy, adopted in 1997 (Hall

2004).

The vision of the DLA is:

To be a global leader in the creation and maintenance

of an equitable and sustainable land dispensation that

results in social and economic development for all

South Africans.

Its mission is:

To provide enhanced land rights to all South Africans,

with particular emphasis on black people, that would

result in increased income levels and job opportunities,

productive land use and well-planned human

settlements.

The Department is organised into three operational

branches, namely Land Planning and Information

(responsible for Deeds, Surveys, Mapping and Spatial

Information), Land and Tenure Reform (responsible

for all aspects of Tenure Reform and Redistribution,

including the LRAD and Commonage programmes)

and Restitution (responsible for all aspects of the

Restitution programme).

DLA operates through a national office and nine

provincial offices, known as provincial land rights

offices. Similarly, the Commission for the Restitution

of Land Rights is organised into the office of the Chief

Land Claims Commissioner, based in Pretoria, and

seven Regional Land Claims Commissioners, spread

throughout the country.

2.3 The evolution of the land reform programme

Since 1994, South Africa has embarked on a land

reform programme, designed to redress the racial

imbalance in land-holding and secure the land rights of

historically disadvantaged people. The Constitution of

the Republic of South Africa sets out the legal basis for

land reform, particularly in the Bill of Rights

(Chapter 2), albeit within a liberal-democratic

framework that upholds the rights of all property

holders. Section 25 allows for expropriation of property

for a public purpose or in the public interest, which

explicitly includes land reform, subject to just and

equitable compensation for owners. The Constitution

places a clear responsibility on the State to carry out

land and related reforms and grant specific rights to

victims of past discrimination.

The framework for land reform policy was set out in

the White Paper on South African Land Policy, which

divides land reform policy into three broad areas:

1. Restitution, which provides relief for certain

categories of victims of forced dispossession

under apartheid.

2. Redistribution, based on a system of

discretionary grants that assists certain

categories of people to acquire land through the

market.

3. Tenure reform, which is intended to secure and

extend the tenure rights of the victims of past

discriminatory practices.

The State’s land reform programme aims to achieve

equity and efficiency: equity by providing access to,

and ownership of, land; and efficiency by improving

land use and its contribution to the rural (and

ultimately the national) economy.

2.3.1 Restitution

The legal basis for the return of ancestral land is the

Restitution of Land Rights Act (commonly known as

the Restitution Act), which provides for the restitution

of land rights to persons or communities dispossessed

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under racially based laws or practices after 1913.

Legally, all restitution claims are against the State,

rather than against current landowners. Provision is

made for three broad categories of relief for claimants:

restoration of the land under claim, granting of

alternative land, or financial compensation. A total

of 79 687 claims were lodged for urban and rural

restitution by the cut-off date of 31 December 1998.

Having settled a high proportion of urban claims,

mostly by cash compensation, the CRLR is currently

dealing with the backlog of rural claims, many of them

on prime agricultural land. Unlike urban claims, where

restoration of land is often not feasible or desired by

the claimants, a high proportion of rural claimants

are demanding the right to return to their land. The

processing of rural claims involves major political

considerations, especially where white landowners

resist restitution and the commercial agriculture

lobby opposes the ‘loss’ of prime agricultural land. To

date, the CRLR has relied on voluntary agreements

with current landowners in order to purchase land

on behalf of claimants, but a 1999 amendment

to the Restitution Act allows the Minister of Land

Affairs to expropriate land by ministerial order. Since

2004, some landowners have been threatened with

expropriation when no agreement could be reached,

but no expropriation orders have yet been issued.

2.3.2 Redistribution

Redistribution policy aims to make land available to

historically oppressed people for whom the Restitution

and Tenure Reform programmes may not be

applicable. To date, this has been done by means of

the ‘willing seller, willing buyer’ (WSWB) approach, the

South African version of the market-based land reform

being promoted internationally by institutions such

as the World Bank. The historical path of agricultural

development in South Africa – specifically the

destruction or extreme marginalisation of smallholders

and tenant farmers and the consolidation of production

in the hands of relatively few large-scale producers

– meant that a ‘land to the tiller’ approach was not a

realistic option. Land reform, to be meaningful, would

have to be fundamentally redistributive, benefiting not

only those currently involved in agriculture, but also

those who had long been excluded from the sector.

WSWB entered the discourse around land reform in

South Africa gradually during the period 1993–1996,

reflecting the rapid shift in economic thinking of the

African National Congress (ANC) from left-nationalist

to neo-liberal. By contrast, the ANC’s Ready to Govern

policy statement of 1992 advocated expropriation and

other non-market mechanisms. WSWB was also not

mentioned in the Reconstruction and Development

Programme (RDP), the manifesto on which the party

came to power in 1994. By the time the White Paper

on South African Land Policy was published in 1997,

however, a market-based approach, and particularly

the concept of WSWB, had become a cornerstone

of land reform policy. Such an approach was not

dictated by the Constitution, which makes explicit

provision for expropriation for purposes of land reform

and for compensation at below market prices, but

was rather a policy choice, in line with the wider neo-

liberal (and investor-friendly) Growth, Employment

and Redistribution (GEAR) macro-economic strategy

adopted by the ANC in 1996.

Both Restitution and Tenure Reform, in theory, fall

outside the scope of WSWB, as they are based on

rights set out in the Constitution and other legislation.

In practice, however, both of these rights-based

programmes have been influenced (and limited) by the

focus on WSWB in the Redistribution programme.

Until 2000, Redistribution policy centred on the

provision of the Settlement/Land Acquisition Grant

(SLAG), a grant of R16 000 to qualifying households

with an income of less than R1 500 per month. In

2001, a new programme, LRAD, was introduced with

the aim of promoting commercially-oriented agriculture.

The new policy offers higher grants, paid to individuals

rather than to households, and makes greater use of

loan financing through institutions, such as the state-

owned Land Bank, to supplement the grant. LRAD

offers a single, unified grant system that beneficiaries

can access along a sliding scale from R20 000 to

R100 000. All beneficiaries must make a contribution,

in cash or kind, the size of which determines the

value of the grant for which they qualify. The minimum

contribution is R5 000, with which an applicant can

obtain a grant worth R20 000. In its approach to land

acquisition, LRAD retains the market-based, demand-

led approach of previous policies.

Most Redistribution projects have involved groups of

applicants pooling their grants to buy formerly white-

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owned farms for commercial agricultural purposes.

This emphasis on group projects has been largely due

to the small size of the available grant relative to the

size and cost of the typical agricultural holding and the

many difficulties associated with subdivision of land.

Also, many rural communities view Redistribution as a

means of extending their existing system of communal

land-holding and favour collective ownership. Under

LRAD, though, there has been a move towards smaller

groups, including extended family groups, due to the

increased availability of finance in the form of both

grants and credit.

In addition, the removal of the income ceiling for grants

has facilitated the entrance of black business people

into the Redistribution programme. These individuals

are able to engage more effectively with officials and

landowners in order to design projects and obtain

parcels of land that match their needs.

Less commonly, groups of farm workers have used

the grant to purchase equity shares in existing farming

enterprises. Since 2001, State land under the control

of national and provincial departments of agriculture

has also been made available for purchase.

CommonageA separate grant, the Grant for the Acquisition of

Municipal Commonage, has been made available to

municipalities wishing to buy land for use by the poor,

typically for grazing purposes.

2.3.3 Tenure reform

DLA’s Tenure Reform programme aims to protect

(or strengthen) the rights of residents of privately-

owned farms and State land and the reform of the

system of communal tenure prevailing in the former

homelands. Almost all land in the rural areas of the

former homelands is still legally owned by the State.

These areas are characterised by severe overcrowding

and numerous unresolved disputes where rights

of one group of land users overlap with those of

another. Today the administration of communal land

is spread across a range of institutions such as tribal

authorities and provincial departments of agriculture,

but is in a state of collapse in many areas. There is

widespread uncertainty about the validity of documents

such as Permission to Occupy (PTO) certificates, the

appropriate procedures for transferring land within

households, and the legality of leasing or selling rights

to use or occupy land.

Attempts to draft a law for the comprehensive reform

of land rights and administration in communal areas

were abandoned in mid-1999 in the face of stiff

opposition from traditional leaders. A second attempt

began in late 2001. After lengthy debate and many

delays, the Communal Land Rights Act was passed by

Parliament and signed by the President in 2004, but it

is yet to be implemented.

On commercial farms, the Extension of Security

of Tenure Act (ESTA) has had limited success

in preventing evictions. In theory, ESTA provides

protection from illegal eviction for people who live

on rural or peri-urban land with the permission of

the owner, regardless of whether they are employed

by the owner or not. While the Act makes it more

difficult to evict occupiers of farm housing, evictions

within the law are still possible, and illegal evictions

remain common. ESTA allows farm dwellers to apply

for grants for on-farm or off-farm developments (e.g.

housing), and gives the Minister of Land Affairs powers

to expropriate land for such developments, but neither

of these measures have been widely used. Where

grants have been provided, it has usually involved

people moving off farms and into townships rather than

granting farm residents agricultural land of their own or

secure accommodation on farms where they work.

One category of farm dwellers, labour tenants, have, in

theory, acquired much stronger legal rights. The term

‘labour tenant’ usually refers to a black tenant on a

white-owned farm who pays for the use of agricultural

land through the provision of labour, as opposed to

cash rental. The Land Reform (Labour Tenants) Act

(LTA) aims to protect labour tenants from eviction and

gives them the right to acquire ownership of the land

that they live on or use. Approximately 19 000 claims

have been lodged under the LTA, mostly in KwaZulu-

Natal and Mpumalanga, but only a small number have

been settled.

2.4 Key problems facing land reform

Land reform has suffered from two major problems

to date: slow delivery of land and limited benefits

for participants in terms of sustainable livelihoods.

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Overall, there is a continuing tension between meeting

quantitative targets and delivering sustainable and

adequately supported projects.

A total of 3.3 million hectares of land had been

transferred by the end of 2005, benefiting an

estimated 1.2 million people. Of this, the greatest

proportion was delivered by the Redistribution

programme (1 477 956ha or 44% of the total),

followed by Restitution (1 007 247ha or 30%),

disposal of State land (761 524ha or 22%) and Tenure

Reform (126 519 or 4%).

While these figures represent substantial progress, they

fall far short of the national target which aims to deliver

30% of agricultural land in the period 1994–2014

across all areas of land reform. The area of land

delivered amounts to approximately 4%, or slightly

more than one-eighth, of the target. DLA now plans

to deliver a further 21.3 million hectares by the year

2014, or 2.36 million hectares per annum between

2006 and 2014 across all aspects of the land reform

programme.

Under Restitution, of 79 696 claims lodged by the

31 December 1998 deadline, just 8 107 remain

outstanding, of which 6 975 are classified as rural and

1 132 as urban claims.1 This distinction is somewhat

misleading in that the Act does not distinguish between

urban and rural claims. It rather differentiates between

claims made by persons and those made on behalf

of communities. The majority of community claims

are on rural land. These are usually complex and

time-consuming to settle as they often involve large

numbers of people. Large community claims represent

the bulk of the claims remaining to be settled.

The slow delivery of land and the inadequacy of post-

transfer support have been exacerbated by weakly

defined intergovernmental relations, the generally poor

integration of land reform into municipal IDPs, and

the limited capacity within many municipalities and

provincial line departments to support land reform.

This is in part a reflection of a ‘silo-driven’ approach

to land reform, where the relevant departments

concentrate on defining and improving their internal

business processes and programmes while ignoring

the need to conceptualise land reform as a joint

programme of government which must articulate with

a range of crosscutting development imperatives and

related legislative requirements.

3 Co-operative governance and local government transitionIt is clear that well-defined intergovernmental relations

and effective local and provincial government support

are prerequisites for successful land reform. In

this regard, the period since 1994 has seen many

changes. The pre-1994 model of government involved

three hierarchical tiers with national government at

the helm. With the enactment of the Constitution

in 1996, this changed to become three ‘distinctive,

interdependent and interrelated’ spheres of

government (Glazewski 2000).

The interdependent nature of these governments

suggests that all spheres must exercise their powers

to ‘the common good of the country as a whole’. It

underlines the belief that it is only when all spheres of

government act collectively and work in cooperation

with one another that they can provide coherent

government that meets the needs of the nation

(Steytler et al. 2005:6).

3.1 The principle of co-operative government

The Constitution emphasises the importance of co-

operative government. This requires different spheres

and institutions of government to co-ordinate their

activities and work together. Closely linked to this

has been the evolution of the concept of spheres, as

opposed to tiers, of government and the creation of

municipalities as a distinct third and co-equal sphere

of governance.

Section 41(1)(h) of the Constitution requires all

spheres of government and organs of state within each

sphere to co-operate with one another in mutual trust

and good faith by:

(i) fostering friendly relations;

(ii) assisting and supporting one another;

(iii) informing one another of, and consulting one

another on, matters of common interest;

(iv) co-ordinating their actions and legislation with one

another;

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(v) adhering to agreed procedures; and

(vi) avoiding legal proceedings against one another.

Section 41(2) requires that an Act of Parliament must

establish or provide for structures and institutions to

promote and facilitate intergovernmental relations. The

Intergovernmental Relations Framework Act (IGRFA)

was promulgated on 15 August 2005 to realise this

obligation. The opportunities presented by IGRFA for

the planning and implementation of land reform and

current compliance by government with its provisions

are discussed more fully in Chapter 7.

3.2 The objects and role of local government

Since 1994, when the RDP was published, local

government has been conceptualised as a key

development actor – the ‘hands and feet’ of the RDP.

Section 152 of the Constitution explains the objects

of local government. It emphasises the importance of

providing services to local communities and providing

for democratic and accountable government at local

level. The objects also include the promotion of social

and economic development and the active participation

of communities in matters of local government.

This developmental role is further emphasised in

Section 153(b) where the Constitution says that a

local municipality must ‘structure and manage its

administration and budgeting and planning processes

to give priority to the basic needs of the community

and to promote the social and economic development

of the community’. To achieve this, this section says

that the municipality should ‘participate in national and

provincial development programmes’.

In addition, and linked to the participation in national

and provincial programmes, Section 154(1) of

the Constitution requires national and provincial

governments to support local governments as follows:

The national government and provincial governments,

by legislative and other measures, must support and

strengthen the capacity of municipalities to manage

their own affairs, to exercise their powers and to

perform their functions.

Although the Constitution creates three co-equal

spheres of government, it also gives national and

provincial governments the specific powers to monitor,

support and ensure the effective performance of

municipalities, and, in extreme cases, to intervene

when constitutional or statutory obligations are not

being fulfilled.

The Constitution has created local government as an

equal organ of state, and it links the three spheres of

government together in anticipation of them acting

together to collaboratively achieve the broad objectives

of the State.

3.3 The impetus for decentralisation

The emphasis on local government as a key

development actor reflects a growing impetus

towards decentralisation of development planning

and implementation. This is partly a reflection of

the ‘belief that many functions can be undertaken

more effectively at local levels of government’ (SLSA

Team 2003:10). However, in practice there remain

complex tensions around decentralisation. On the

one hand, there is the tension between the desire to

retain control at the national and provincial levels and

the need to invest in and empower the local sphere.

Effectively, the ‘resources and responsibilities vested

in the local sphere of government continue to be set

largely by other spheres of government, particularly line

departments at provincial and national levels’ (SLSA

Team 2003:10). On the other hand, decentralisation

offers an opportunity to a national government

department ‘to relieve itself of existing, or potential,

fiscal pressure and administrative responsibilities’

(SLSA Team 2003:10).

The extent to which decentralisation is effected is

mirrored in the extent to which fiscal decentralisation

has been taking place in line with the increasing

responsibilities of sub-national governments to provide

public services. The sub-national governments are

allocated a proportion of nationally raised revenue and

have the legal autonomy to formulate their budgets

and spend the funds as they wish. Over the period

2005/06, national departments accounted for about

37.6% of total revenue collected nationally, provinces

received 57.7% and municipalities 4.7%. Overall,

there has been a steady increase in transfers from

the national to the provincial and local levels (Yemek

2005).

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In addition to focusing on the local government sphere,

national departments, like DLA, have been through

extensive processes of decentralising functions to

PLROs and RLCCs in a bid to speed up the land reform

process by localising budgets and project approvals.

3.4 Public administration and developmental local government

Section 195 of the Constitution determines that

the basic values and principles that govern public

administration require that such administration

must be governed by the democratic values and

principles enshrined in the Constitution, including

the principle that ‘public administration must be

development-orientated’ (Subsection c) and that

‘people’s needs must be responded to, and the public

must be encouraged to participate in policy-making’

(Subsection e).

Section 195(2) provides that the above principle

applies to administration in every sphere of

government, organs of state and public enterprises.

It confirms that municipalities are part of public

administration insofar as the principles of the

Constitution are applicable, and re-emphasises the

notion of interdependence and co-operation.

Perhaps the most important observation from a land

reform perspective is that up until 1996 democratic

local government, developmental or otherwise, did not

exist in rural areas.

In most parts of South Africa, rural local government

is a new phenomenon, with democratic rural district

councils and rural local councils coming into existence

only after the first local government elections held in

1995 and 1996. Since then, rural local government has

remained largely underdeveloped and as structured

during the transition phase 1995 to 2000, lacking

sufficient financial and administrative capacity to have

a significant impact on poverty (Pycroft 2002).

The 1998 White Paper on Local Government outlined

a new vision of developmental local government,

which was to be implemented following the 2000

local government elections. This was defined as ‘local

government committed to working with citizens and

groups within the community to find sustainable ways

Figure 3.1: Trends in allocation of Provincial Equitable Shares (PES) and Provincial Conditional Grants (PGC)

Source: Department of Finance Medium Term Budget Policy Statement and Budget Review 2004.

Figure 3.2: Trends in allocation of Local Equitable Shares (LES) and Local Conditional Grants (LGC)

to meet their social, economic and material needs and

improve the quality of their lives’.

Developmental local government and the progressive

decentralisation of service delivery have been the

recurring motifs of the local government transition

process through the interim and final phases of

local government transition, which resulted in the

demarcation and establishment of ‘wall-to-wall’ local

and district municipalities as the basis for the 2000

municipal elections.2

However, with the proliferation of new institutions, the

challenge has been to find effective ways to share

information, jointly plan and budget and co-operate

with regard to implementation. This has led to the

establishment of a variety of forums and information

channels to try to improve intergovernmental relations.

However, a recent review characterised the current

state of intergovernmental relations as ‘fraught with

confusion and misunderstanding’ (Steytler et al.

2005:4).

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200 000

150 000

100 000

50 000

02000/01 2002/03 2004/05 2006/07

PES

PGC

Provincial revenue allocation

Source: Department of Finance Budget Review 2004.

LES

LGC

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15 000

10 000

5 000

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Division of nationally raised revenue allocated in local

government

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3.5 Local government transition

3.5.1 The Local Government: Municipal Structures Act

Addressing the needs of the community, understood

broadly in terms of Section 152 of the Constitution,

pervades the role of local government in all subsequent

legislation. The Local Government: Municipal

Structures Act (commonly known as the Municipal

Structures Act or simply the Structures Act) addresses

this by focusing on delimiting the powers between

district and local municipalities. All four sub-clauses in

Section 83(3) are of relevance to land reform:

A district municipality must seek to achieve the

integrated, sustainable and equitable social and

economic development of its area as a whole by—

(a) ensuring integrated development planning for the

district as a whole;

(b) promoting bulk infrastructural development and

services for the district as a whole;

(c) building the capacity of local municipalities in its

area to perform their functions and exercise their

powers where such capacity is lacking; and

(d) promoting the equitable distribution of resources

between the local municipalities in its area to

ensure appropriate levels of municipal services

within the area.

In order to achieve this, Section 19(2) requires that the

municipal council must annually review the following:

(a) the needs of the community;

(b) its priorities to meet those needs;

(c) its processes for involving the community;

(d) its organisational and delivery mechanisms for

meeting the needs of the community; and

(e) its overall performance in achieving the objectives

referred to in subsection 1 [Section 152 of the

Constitution].

3.5.2 The Local Government: Municipal Systems Act

This law, commonly known as the Municipal Systems

Act (or simply the Systems Act), provides direction

to municipalities with regard to their development

responsibilities by requiring and giving some guidance

to the preparation of IDPs. Most importantly, in

relation to land reform, Section 25(1) requires

municipalities to:

adopt a single, inclusive and strategic plan for the

development of the municipality which—

(a) links, integrates and co-ordinates plans and takes

into account proposals for the development of the

municipality;

(b) aligns the resources and capacity of the

municipality with the implementation of the plan;

(c) forms the policy framework and general basis on

which annual budgets must be based;

(d) complies with the provisions of this Chapter [the

chapter on integrated development planning];

and

(e) is compatible with national and provincial

development plans and planning requirements

binding on the municipality in terms of legislation.

3.6 Local government and land reform

Section 157(4) of the Constitution provides for local

government to be assigned a role in a wide range of

matters including land reform:

The national government and provincial governments

must assign to a municipality, by agreement and

subject to any conditions, the administration of

a matter listed in Part A of Schedule 43 or Part A

of Schedule 54 which necessarily relates to local

government, if—

(a) that matter would most effectively be administered

locally; and

(b) the municipality has the capacity to administer it.

This is the principle of subsidiarity, where the power

and responsibility to perform a particular function is

located at the lowest appropriate level.

Section 23(1)(c) of the Municipal Systems Act clearly

provides for the involvement of municipalities in land

reform through their IDPs by saying that a municipality

must undertake developmentally orientated planning

so as to ensure that it:

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together with other organs of state contribute to

the progressive realisation of the fundamental rights

contained in sections 24, 25, 26, 27 and 29 of the

Constitution [the rights related to the environment,

property and land, housing, health care, food, water

and social security and education].

Local governments are required to plan and implement

land reform in their areas of jurisdiction in co-operation

with the various other spheres of government.

Section 88 of the Municipal Structures Act describes

this as follows:

(1) A district municipality and the local municipalities

within the area of that district municipality must

co-operate with one another by assisting and

supporting each other.

(2) (a) A district municipality on request by a local

municipality within its area may provide

financial, technical and administrative support

services to that local municipality to the extent

that that district municipality has the capacity

to provide those support services.

(b) A local municipality on request of a district

municipality in whose area that local

municipality falls may provide financial,

technical and administrative support services to

that district municipality to the extent that that

local municipality has the capacity to provide

those support services.

(c) A local municipality may provide financial,

technical or administrative support services

to another local municipality within the area

of the same district municipality to the extent

that it has the capacity to provide those

support services, if the district municipality or

that local municipality so requests.

(3) The MEC for local government in a province must

assist a district municipality to provide support

services to a local municipality.

Although the Constitution and the Municipal Systems

Act make it clear that municipalities should be involved

in land reform, there is less clarity concerning the

exact nature of this involvement and the extent to

which local municipalities are directly responsible

for the implementation of land reform projects and

programmes.

What is significant, however, is the fact that neither

Schedule 4 nor Schedule 5 of the Constitution5 clarify

the roles of national, provincial and local government

with regard to the development responsibilities of

government – in particular the development roles

emerging from the Bill of Rights in respect of the

environment, property and land, housing, health care,

food, water and social security and education, all of

which are specifically highlighted in the Municipal

Systems Act.6

To give effect to the provisions of the Municipal

Systems Act, DPLG has developed a set of guidelines

which indicate that, while no separate sector plan is

necessarily required, the IDP must address land reform

by:

a. Supporting the land reform programme and its

operations;

b. Assisting in the land reform application process;

and

c. Addressing the need for municipal services and land

use planning within existing land reform projects

(DPLG undated:53–55).

3.7 The gaps between vision and manifestation

As indicated above, effective co-operative governance

is one of the more challenging developmental goals

to realise. Such co-ordination involves harmonisation

of the legislation and legislative mandates of different

departments, co-ordination of functions within a clear

spatial development framework, and alignment of

budgets and human resources to efficiently identify

and meet priority development goals.

Overall, while there have been efforts to improve

intergovernmental relations and integrate planning and

delivery processes across different sectors, there is still

much evidence that many municipalities remain weak

and intergovernmental relations are fragmented.

In April 2005, DPLG launched Project Consolidate, a

programme of support to local government. More than

half the established municipalities have been found to

be in need of intensive support from the programme.

Overall, a shortage of management skills has been

identified, which is often associated with poor financial

administration (DPLG 2005). Many municipalities have

accumulated substantial debt. In the Auditor-General’s

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report on the Submission of Financial Statements by

Municipalities for the financial year ended 30 June

2005, it was stated that 132 out of 284 municipalities

submitted financial statements late or did not submit

financial statements at all. The shortage of skilled

staff contributes to the high number of qualified audit

reports amongst municipalities.

Weak local government and ad hoc intergovernmental

relations have had major implications for effective land

reform delivery. While land is a national competency,

the planning and implementation of land reform

necessarily cuts across national, provincial and local

spheres of government. Overall, there are continuing

problems of government departments/spheres of

government working without reference to one another.

This is a key constraint impacting on the effectiveness

of land reform and other government programmes

which are national development priorities. A recent

status quo review of intergovernmental relations found

that:

The implementation of key national priorities requiring

the cooperation of all three spheres of government has

been an unpredictable and incoherent process (with the

clear exception of the budget process). This confusion

regarding the status, role and interrelationship of

these processes results in little coherence between the

spheres’ policies and priorities.

Second, most instruments of intergovernmental

relations are ad hoc as they lack institutional

definition. This is despite the fact that service

delivery programmes often fail due to the perplexing

jurisdictional boundaries between state departments,

organs or spheres for policy priorities that cut across

traditional competencies.

Thus the ad hoc nature of the intergovernmental

relations has resulted in poor service delivery at

community level, including problems of duplication,

real or perceived unfunded mandates, and a general

inability to forge collaborative partnerships or find

common ground for joint action (Steytler et al.

2005:6).

Measures to make co-operative governance feasible,

practical and functional have to be at the centre of any

strategy seeking to involve different government actors

in the provision of settlement and implementation

support.

4 Changing planning legislation and approaches

The planning and development landscape was

characterised by extreme fragmentation in 1994. There

was a plethora of planning legislation all influenced by

the apartheid mindset of ‘separate development’ and

parallel institutions.

4.1 The Development Facilitation Act

The first piece of legislation signalling the new

government’s approach to planning was the

Development Facilitation Act (DFA) of 1995. This Act

was passed to help speed up land development and

remove many of the obstacles contained in planning

legislation from the past. The DFA was conceptualised

as interim legislation to override a mass of historically

inherited planning legislation and pave the way for the

development of new planning law.

Chapter 1 of the DFA specifies a number of general

principles for land development which must apply to

all land development.7 The principles, which remain in

force, encourage active participation of communities

in local planning decisions, and efficient, integrated

and environmentally sustainable land development.

Section 2 provides that:

The general principles for land development set out in

section 3 apply throughout the Republic and—

(a) apply to the actions of the State and a local

government body;

(b) serve to guide the administration of any physical

plan, transport plan, guide plan, structure plan

zoning scheme or any like plan or scheme…

(c) serve as guidelines by reference to which any

competent authority shall exercise any discretion

or take any decision in terms of this Act or any

other law dealing with land development, including

any such law dealing with the subdivision, use and

planning of or in respect of land.

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Section 3(1) lists the general principles for land

development. Those that are relevant to land reform

include the following:

(c) Policy, administrative practice and laws should

promote efficient and integrated land development

in that they—

(i) promote the integration of the social,

economic, institutional and physical aspects of

land development; ...

(iii) promote the availability of residential and

employment opportunities in close proximity to

or integrated with each other; ...

(vii) contribute to the correction of the historically

distorted spatial patterns of settlement in

the Republic and to optimum use of existing

infrastructure in excess of current needs;...

(d) Members of communities affected by land

development should actively participate in the

process of land development ...

(g) Laws, procedures and administrative practice

relating to land development should— ...

(iii) be calculated to promote trust and acceptance

on the part of those likely to be affected

thereby; and

(iv) give further content to the fundamental rights

set out in the Constitution.

The DFA was particularly concerned with trying to

address the spatial distortions of apartheid and move

from a fragmented and racially-skewed approach to

planning and decision-making to a more holistic and

integrated approach. To this end it required local

government to develop land development objectives

(LDOs) and to begin to work in a more developmental

way. LDOs were designed as a mechanism for land

use planning in local and district municipalities. This

was combined with the Local Government Transition

Act, which ‘imposed a major obligation on all local

governments to engage in a new form of planning

which it termed integrated development planning’

(Mabin 2002).

4.1.1 Spatial development frameworks and land-use management schemes

There have been a number of moves towards

establishing a unitary spatial development planning

and land use management system. This process began

with the passing of the DFA in 1995 and the release of

the Draft Green Paper on Development and Planning

in 1999. This was followed in 2000 by the Municipal

Systems Act, of which Section 26(e) requires

municipalities to produce ‘a spatial development

framework which must include the provision of basic

guidelines for a land use management system for the

municipality’. In 2001, the White Paper on Spatial

Planning and Land Use Management was released by

the Ministry of Agriculture and Land Affairs. Various

versions of a Draft Land Use Management Bill have

also been published, the most recent version of which

is dated 30 January 2006.

The four components of a spatial development

framework (SDF), specified in the White Paper (Ministry

of Agriculture and Land Affairs 2001), are:

1. Policy for land use and development.

2. Guidelines for land use management.

3. A capital expenditure framework showing where

the municipality intends spending its capital

budget.

4. A strategic environmental assessment.

The content of this spatial framework is further spelled

out in the Local Government: Municipal Planning

and Performance Management Regulations, 2001

(Government Notice 22605, 24 August 2001), which

state that an SDF in a municipality’s IDP must:

• give effect to the Chapter 1 principles of the DFA;

• set out objectives that reflect the desired spatial

form of the municipality;

• contain strategies and policies regarding the

manner in which to achieve the objectives;

• set out basic guidelines for a land use

management system;

• contain a strategic assessment of the

environmental impact of the SDF;

• identify programmes and projects for the

development of land within the municipality; and

• provide a visual representation of the desired

spatial form of the municipality, including

identification of where public and private land

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development and infrastructure investment

should take place.

The DLA White Paper on Spatial Planning and Land

Use Management (2001) and the subsequent Draft

Land Use Management Bill emphasises that in a rural

context it will be necessary also to deal specifically with

natural resource management issues, land rights and

tenure arrangements, land capability, subdivision and

consolidation of farms, and the protection of prime

agricultural land.

Section 18(12) of the Draft Land Use Management Bill

also requires that ‘a municipal land use scheme must

give effect to and be aligned with the National Spatial

Development Perspectives [sic], Provincial Growth and

Development Strategy, Provincial Spatial Development

Framework or similar instruments’.

Despite the emphasis on SDFs and land use planning

schemes, relatively little emphasis has been placed

on and investment been made in providing reliable

spatial information on existing and planned land reform

projects. This is an essential input if municipal SDFs

are to have any meaning. DLA, which administers the

Spatial Data Infrastructure Act, is in the process of

trying to align the various spatial datasets and secure

common standards for spatial information for South

Africa.

5 Legislation regulating township establishment and the provision of municipal servicesThe purpose of establishing towns or denser

settlements is to enable residents to share the

financial burden of services and to cross-subsidise

each others’ use of services such as water and

electricity. If the South African population were to be

spread across the country without denser settlement,

each household would have to make its own

arrangements for service delivery and payment in the

same way that farm homesteads get their services.

This is the position on land classed as ‘agricultural

land’ as opposed to ‘erven’.8 Such landowners,

whether they are public (State) owners or private

owners (including private individuals, corporate entities,

trusts and communal property associations), have to

undertake their own refuse collection and disposal,

negotiate with Eskom to bring power lines up to the

boundary of the land, and bear the cost of reticulating

the (bulk) electricity from the service point on the

boundary fence. In practice, these landowners usually

have to provide their own water and sanitation services

as well, although DWAF maintains that municipalities

are obliged to provide at least a basic level of these

services to all residents, regardless of where they live

(DWAF 2005:5).

Township establishment provides the legal and

institutional framework for the subdivision and

registration of erven (on scale) in the name of

private landowners so that the ‘practical measures’

needed to impose and collect charges may be used.

Various pieces of legislation make provision for the

establishment of townships, and for creating the

legal institutional arrangements for the provision of

municipal services and the collection of payments.

These payments include rates as a form of tax and

direct service charges for water, refuse removal and

other services. Local government is entitled to an

‘equitable share’ of the revenue raised nationally to

enable it to provide basic services and perform its

functions.

In terms of the Municipal Systems Act, municipalities

are obliged to provide services on a financially

sustainable basis. Section 1 of the Act defines the

concept as follows:

‘financially sustainable’, in relation to the provision

of a municipal service, means the provision of a

municipal service in a manner aimed at ensuring

that the financing of that service from internal and

external sources, including budgeted income, grants

and subsidies for the service, is sufficient to cover the

costs of—

(a) the initial capital expenditure required for the

service;

(b) operating the service; and

(c) maintaining, repairing and replacing the physical

assets used in the provision of the service.

Because of practical difficulties, municipalities

are unable to take responsibility for the ‘internal’

reticulation of services to users on land that they

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do not own. Landowners who receive services can

be held liable to pay for those services because the

municipality has more reliable and readily available

legal means to extract payment. If a landowner does

not pay, the municipality can discontinue the services

and take steps to collect charges from the owner.9

These ‘practical’ debt management measures are not

available to a municipality if supplied services to people

living on land owned by someone else. In cases where

landowners reticulate water and electricity on their land

and provide refuse removal, the collection of charges

for these services is the business of that landowner.

An occupant of a registered erf may, once he or she

receives services, qualify for indigent grant subsidies.

Section 97(1)(c) of the Municipal Systems Act says

that ‘provision must be made for indigent debtors that

is consistent with its rates and tariffs policies and any

national policy on indigents’. Each municipality may

determine its own indigence policy in conjunction with

the local community. The policy must be governed by

the constitutional principles of lawfulness, fairness,

effectiveness, transparency and responsibility and

it has to be monitored and evaluated regularly.

The allocated amount depends on the number of

persons who qualify, as well as the amount of money

received in terms of the equitable share system. The

municipality also has to decide what the long-term

tendency of indigent households is likely to be, in order

to avoid creating expectations and having to change

the amount of the subsidy drastically each year.

The following laws provide for township establishment:

• the Development Facilitation Act or provincial

equivalents of the DFA, where these exist;10

• the ordinances of the four pre-1994 provinces,11

styled according to the Cape Province’s Land

Use and Planning Ordinance (LUPO), all of which

continue to apply in the current nine provinces;

• the Less Formal Townships Establishment Act

(commonly known as LEFTEA); and

• the Provision of Land and Assistance Act 126 of

1993 (commonly known as Act 126).

A township can (arguably) also be established by a

landowner who subdivides land and transfers each

subdivided portion. However, such steps will be long

and cumbersome and will require that township

establishment conditions are registered against the

title deeds in terms of servitudes, etc.

The main difference between Act 126 and the other

ways of establishing a township is that this Act does

not contain a provision in terms of which streets and

public places automatically vest in the municipality

upon the transfer of the first erf from the general plan

which establishes the township perimeters.

Municipalities are obliged to establish spending

priorities when it comes to providing services to

established townships. They are likely to give a higher

priority to providing services to more densely populated

settlements closer to town. This is because the cost of

reticulation is proportional to the distance which has

to be covered, and because the number of people who

will benefit is greater.

6 Emerging environmental legislation Over the last ten years, the South African government

has passed a significant body of legislation geared

towards environmental management and protection.

A full review has been commissioned by SDC (McLean

2007). Chapter 9 contains more detailed information.

While these efforts are laudable, there is an increasing

risk that DLA planners and new landowners may not be

aware of the complex mass of interlinking but distinct

pieces of legislation containing various environmental

entitlements, duties and obligations. This has major

implications for environmental and natural resource

management within the context of land reform and for

the formulation of DLA’s Environmental Implementation

and Management Plan in terms of the National

Environmental Management Act. The Act is discussed

further below.

The legal obligations of the State and of all landowners

with respect to environmental governance and

management are grounded in a number of sources

of law: the Constitution, especially the Bill of Rights,

the common law,12 domestic legislation, and certain

international treaties.

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In the land reform context, Section 24 of the

Constitution is particularly important:

Everyone has the right—

(a) to an environment that is not harmful to their

health or well-being; and

(b) to have the environment protected for the benefit

of present and future generations, through

reasonable legislative and other measures that—

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development

and use of natural resources while promoting

justifiable economic and social development.

The wording of Section 24(b) indicates that the

State and organs of state have an obligation to take

‘reasonable legislative and other measures’ to prevent

ecological degradation and achieve ecologically

sustainable development and natural resource use.

The State has partly met its obligations by passing all

the legislation discussed below, but the requirement

that it must take ‘other measures’ indicates that it

must do more to ensure the environmental goals are

achieved in practice.

6.1 The National Environ-mental Management Act

NEMA is a key piece of environmental legislation.

It seeks to provide a framework for co-operative

environmental governance by establishing principles for

decision-making on matters affecting the environment,

institutions that will promote co-operative governance,

and procedures for co-ordinating environmental

functions exercised by organs of state. It further seeks

to provide for certain aspects of the administration

and enforcement of other environmental management

laws.

NEMA embraces all three fields of environmental

concern: resource conservation and exploitation;

pollution control and waste management; and land-

use planning and development. The concept of

sustainable development underpins the statute,13 and

the definition of ‘environment’ in Section 1 is broad

and far-reaching:

(xi) “environment” means the surroundings within

which humans exist and that are made up of—

(i) the land, water and atmosphere of the earth;

(ii) micro-organisms, plant and animal life;

(iii) any part or combination of (i) and (ii) and the

interrelationships among and between them;

and

(iv) the physical, chemical, aesthetic and cultural

properties and conditions of the foregoing that

influence human health and well-being.

6.1.1 NEMA Principles

Section 2 of NEMA contains important and extensive National Environmental Management Principles, which apply to the ‘actions of all organs of state that may significantly affect the environment’. These principles must guide decisions under NEMA or any statutory provision concerning the protection of the environment. Those principles with particular relevance to the land reform process include:

• Environmental management must place people and their needs first, serving their physical, psychological, developmental, cultural and social interests equitably (Section 2(2)).

• Development must be socially, environmentally and economically sustainable (Section 2(3)).

• Sustainable development requires the consideration of all relevant factors including that:

• the disturbance of ecosystems, loss of biological diversity, waste, pollution and degradation of the environment are avoided, or, where they cannot be avoided, minimised and remedied;

• the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of resource depletion, while renewable resources are utilised in a manner that does not jeopardise their integrity or that of the ecosystem; and

• negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be prevented, minimised and

remedied (Section 4(a)).

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Table 3.1: Summary of environmental legislation

Act PurposeEnvironmental Conservation Act (ECA)

The ECA seeks to provide for the effective protection and controlled utilisation of the environment.

National Environmental Management: Biodiversity Act

The Biodiversity Act seeks to provide for the management and conservation of biological diversity and its components, the sustainable use of indigenous biological resources and the fair and equitable sharing of benefits arising from bio-prospecting of indigenous biological resources. It further seeks to provide for co-operative governance in biodiversity management and conservation.

National Environmental Management: Protected Areas Act

The Protected Areas Act creates a national system of protected areas in order to protect and conserve ecologically viable areas representative of biodiversity in the country. It further seeks to achieve co-operative environmental governance and to promote sustainable and equitable utilisation and community participation.

Conservation of Agricultural Resources Act (CARA)

CARA seeks to provide for the conservation of natural agricultural resources by maintaining the production potential of land, combating and preventing erosion and weakening or destruction of water resources, protecting vegetation and combating weeds and invader plant species.

National Water Act The National Water Act gives effect to the constitutional right of access to water. The statute’s overall purpose is to ensure that South Africa’s water resources are protected, used and managed in ways which take into account a number of factors, including inter-generational equity, equitable access, redressing the results of past racial and gender discrimination, promoting sustainable and beneficial use, facilitating social and economic development, and providing for water quality and environmental protection.

Marine Living Resources Act This Act seeks to provide for the conservation of the marine ecosystem, the long-term sustainable and equitable utilisation of marine living resources and orderly, fair and equitable access to exploitation, utilisation and protection of certain marine resources. This has important implications for the livelihoods of communities living in coastal areas whose livelihoods may depend in part on access to marine resources.

National Forests Act The National Forests Act seeks to promote the sustainable management and development of forests for the benefit of all, to restructure forestry in State forests, to protect certain forests and trees, to promote community forestry and greater participation in all aspects of forestry activities, and to ‘promote the sustainable use of forests for environmental, economic, educational, recreational, cultural, health and spiritual purposes’.

National Veld and Forest Fire Act The purpose of the National Veld and Forest Fire Act is to prevent and combat veld, forest and mountain fires, and to establish a variety of institutions, methods and practices for achieving this purpose.

Mineral and Petroleum Resources Development Act (MPRDA)

The MPRDA has a number of diverse objects, including promoting equitable access to mineral and petroleum resources, promoting economic growth and resource development, providing for security of tenure, and giving effect to the ‘environmental right’ contained in Section 24 of the Constitution.

National Heritage Resources Act (NHRA)

The NHRA sets out to protect and promote good management of South Africa’s heritage resources, and to encourage and enable communities to nurture and conserve their legacy so it may be bequeathed to future generations. The statute recognises that South African heritage is unique and precious, defines cultural identify, aids in spiritual well-being, and shapes national character.

Provincial nature conservation ordinances

The nature conservation ordinances which applied in the pre-1994 provinces (Transvaal, Orange Free State, Natal and the Cape Province) still apply in the nine current provinces, although some new legislation has been adopted by certain provinces.

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• Equitable access to environmental resources,

benefits and services to meet basic human needs

and ensure human well-being must be pursued,

and special measures must be taken to ensure

access to categories of persons disadvantaged by

unfair discrimination (Section 4(d)).

• Widespread participation of interested and

affected parties in environmental governance

must be promoted, and all people must

be given the opportunity to develop the

‘understanding, skills and capacity necessary for

achieving equitable and effective participation’

(Section 4(f)).

• Community well-being and empowerment must

be promoted through environmental education,

the raising of environmental awareness, the

sharing of knowledge and experience and other

appropriate means (Section 4(h)).

• Decision-making must be open and transparent,

and access to information provided in

accordance with the law (Section 4(k)).

• There must be intergovernmental co-ordination

and harmonisation of policies, legislation and

actions relating to the environment (Section 4(l)).

• The environment is held in the public trust for

the people. The beneficial use of environmental

resources must serve the public interest and the

environment must be protected as the people’s

common heritage (Section 4(o)).

• The vital role of women and youth in

environmental management must be recognised

and their full participation promoted (Section

4(q)).

• Sensitive, vulnerable, highly dynamic or stressed

ecosystems require specific attention in

management and planning procedures, especially

if subject to significant human resources usage

and development pressure (Section 4(r)).

It is important that land reform projects consciously

take the NEMA Principles into account in shaping and

implementing land reform policy. Land reform decisions

wield the potential to significantly impact on the

environment, so the principles apply to DLA’s decisions

and actions.

6.1.2 Environmental implementation and management plans

In seeking to establish procedures for co-operative

governance, Section 11 of NEMA requires provincial

governments and certain State departments to prepare

and implement environmental implementation and/or

management plans.

DLA is one of several national departments required

to prepare a joint Environmental Implementation

and Management Plan (EI&MP) in terms of Section

11(3) of NEMA. The purpose of these plans includes

harmonising environmental policies and programmes,

minimising duplication and promoting consistency in

environmental governance, and securing the protection

of the environment across South Africa. EI&MPs are

key mechanisms through which various organs of state

may consider how their laws, policies and practices

impact the environment and how to co-ordinate their

environmental responsibilities with other government

actors.

6.2 Other environmental legislation of relevance to land reform

Table 3.1 highlights a range of environmental laws

that protect rights and confer duties, obligations and

potential liabilities on people acquiring land under the

land reform programme. The relevance of these for

land reform planning and implementation are further

discussed in Chapter 9.

7 ConclusionsThis chapter illustrates the rapidly changing nature

of the development context and the increasingly

complex environment that DLA planners and

municipal managers must navigate. It highlights the

multidimensional nature of the land reform programme

and the centrality of co-ordinated and aligned

intergovernmental relations for the success of the

land reform programme. It provides the basis for an

argument that land reform should be regarded as a

joint programme of government in that it encapsulates

a full gamut of development functions, of which the

transfer of land is but the first step.

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8 Chapter referencesAmbert, C & Hornby, D. 2006. Restitution of land

rights, commonages and LRAD: HIV/Aids and

integrated planning perspective. Cape Town:

Sustainable Development Consortium.

ANC (African National Congress). 1994. Reconstruction

and Development Programme. Johannesburg:

Umanyano.

Communal Land Rights Act 11 of 2004.

Conservation of Agricultural Resources Act 43 of 1983.

Constitution of the Republic of South Africa Act 108 of

1996, as amended.

Development Facilitation Act 67 of 1995.

DPLG (Department of Provincial and Local

Government). 2005. Implementation of free basic

services by municipalities. PowerPoint presentation

to the Provincial and Local Government Portfolio

Committee, 21 June 2005.

DPLG (Department of Provincial and Local

Government). Undated. IDP guide pack. Pretoria:

DPLG.

Draft Green Paper on Development and Planning.

National Development and Planning Commission,

22 April 1999. www.info.gov.za/greenpapers/1999/

devplan.pdf, accessed 22 May 2007.

Draft Land Use Management Bill. Ministry for

Agriculture and Land Affairs, 30 January 2006.

www.participation.org.za/docs/landusemb.pdf,

accessed 22 May 2007.

DWAF (Department of Water Affairs and Forestry).

2005. Ensuring water services to residents on

privately owned land: A guide for municipalities.

Version 1, July. Pretoria: DWAF. www.dwaf.gov.

za/Documents/Other/WS/POLGuidelinesJun05.pdf,

accessed 30 May 2007.

Environmental Conservation Act 73 of 1989.

Extension of Security of Tenure Act 62 of 1997.

Glazewski, J. 2000. Environmental law in South Africa.

Durban: Butterworths.

Hall, R. 2004. Land and agrarian reform in South

Africa: A status report 2004. Cape Town:

Programme for Land and Agrarian Studies,

University of the Western Cape. (Research report;

no. 20.)

Intergovernmental Relations Framework Act 13 of

2005.

Land Reform (Labour Tenants) Act 3 of 1996.

Land Use and Planning Ordinance 15 of 1985 (Cape

Province).

Less Formal Townships Establishment Act 113 of

1991.

Local Government Transition Act 209 of 1993.

Local Government: Municipal Planning and

Performance Management Regulations. 2001.

South African Government Gazette, Government

Notice 22605, 24 August 2001.

Local Government: Municipal Structures Act 117 of

1998, as amended.

Local Government: Municipal Systems Act 32 of 2000,

as amended.

Mabin, A. 2002. Local government in the emerging

planning context, in Democratising local

government: The South African experiment,

edited by S Parnell, E Pieterse, M Swilling and

D Woolridge. Cape Town: University of Cape Town.

Marine Living Resources Act 18 of 1998.

McLean, J. 2007. Constitutional and national

legislation relevant to environmental protection in

land reform. Cape Town: Sustainable Development

Consortium.

Mineral and Petroleum Resources Development Act 28

of 2002.

National Environmental Management Act 107 of 1998,

as amended.

National Environmental Management: Biodiversity

Act 10 of 2004.

National Environmental Management: Protected Areas

Act 57 of 2003.

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National Forests Act 84 of 1998, as amended.

National Heritage Resources Act 25 of 1999.

National Spatial Development Perspective. Policy Co-

ordination and Advisory Services, the Presidency,

18 March 2003.

National Veld and Forest Fire Act 101 of 1998, as

amended.

National Water Act 36 of 1998.

Pycroft, C. 2002. Addressing rural poverty:

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African experiment, edited by S Parnell, E Pieterse,

M Swilling and D Woolridge. Cape Town: University

of Cape Town.

Restitution of Land Rights Act 22 of 1994, as

amended.

SLSA Team. 2003. Decentralisations in practice in

southern Africa. Cape Town: Programme for Land

and Agrarian Studies, University of the Western

Cape. (Sustainable Livelihoods in Southern Africa

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Steytler, N, Fessha, Y & Kirkby, C. 2005. Status

quo on intergovernmental relations regarding

local government. Cape Town: Local Government

Project, Community Law Centre, University of the

Western Cape.

Subdivision of Agricultural Land Act 70 of 1970,

as amended.

White Paper on Local Government, 9 March 1998,

www.thedplg.gov.za/subwebsites/wpaper/wpindex.

htm, accessed 14 March 2007.

White Paper on South African Land Policy, June 1997.

Department of Land Affairs.

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Management: Wise Land Use. Ministry of

Agriculture and Land Affairs, 2001. www.info.

gov.za/whitepapers/2001/spatialplanning.htm,

accessed 22 May 2007.

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Endnotes1 Sources: Keynote address by the Honourable

Minister for Agriculture and Land Affairs, Ms

Lulu Xingwana, at the launch of the Land Claims

Commission’s Annual Report, Limpopo, 11 August

2006; Department of Land Affairs, Presentation to

NEDLAC by Mr Mduduzi Shabane, Deputy Director-

General, 24 August 2006.

2 Section 151 of the Constitution provides that the

entire territory of South Africa must fall under a

municipality.

3 Schedule 4 of the Constitution lists the functional

areas in which national and provincial government

have joint power to pass laws.

4 Schedule 5 lists the functional areas in which only

provinces have the authority to pass laws.

5 See footnotes 3 and 4.

6 In a 2003 report, DPLG asserts that Schedules 4

and 5 ‘bear little resemblance to the developmental

mandate of local government…’.

7 Some provinces have passed their own planning

laws in accordance with the Chapter 1 principles of

the DFA.

8 An erf (plural: erven) is the name for a piece of

land in a township and municipal area. Barring the

‘homelands’/‘communal areas’ (to which a different

set of tenure arrangements applied), land that does

not fall within the area of jurisdiction of pre-1994

municipal areas is deemed to be ‘agricultural land’.

In most cases, such pieces of land are registered,

not as erven, but as ‘farms’. The Subdivision of

Agricultural Land Act prohibits the subdivision of

‘agricultural land’, unless the Minister of Land

Affairs grants permission. The Act therefore

effectively stops developers from subdividing land

to establish townships/erven. Even though we have

had ‘wall-to-wall’ municipalities since 5 December

2000, the categorisation of ‘agricultural land’

continues to apply.

9 If need be, the municipality can go so far as to sell

the owner’s land in execution to settle the debt.

10 The Western Cape has its own provincial equivalent

of the DFA, but it has not been promulgated.

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KwaZulu-Natal and the Northern Cape have their

own provincial acts in place of the DFA.

11 Transvaal, Orange Free State, Natal and the

Cape Province.

12 The common law is concerned with how people

interact with each other in the context of the

environment. It protects use and enjoyment of

property, within certain limits, including that such

use and enjoyment does not interfere with the

rights of other people. The common law also

applies to State action.

13 E.g., NEMA Preamble and Sections 1 (definition),

2(2)–(4) and 26(2)(a).

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